Mybico v David Lewis N.O. and Others

On 11 January 2006, the Competition Tribunal (second respondent) issued merger clearance certificates approving a merger between Vodafone Group PLC (third respondent) and Venfin (Pty) Limited (fourth respondent), as well as Business Venture Investments No 951 LTD and the fourth respondent. The transactions were considered inter-dependent and heard simultaneously. Mybico (applicant) submitted a last-minute written objection on 11 January 2006 at 10:12, minutes before the hearing began, jointly with HBR Foundation. The objection was provided to the merging parties who submitted it should not be entertained. The Tribunal considered the objection despite its unprocedural manner but dismissed it, finding it lacked jurisdiction to dictate to whom parties should sell their interests. Mybico's representative arrived at the Tribunal offices at 11:15, significantly after the hearing had ended. Mybico never made submissions to the Competition Commission during its investigation, never applied to intervene in the Tribunal's proceedings, and was not present at the hearing. On 24 February 2006, Mybico sought to review and set aside the Tribunal's decision. The matter was initially enrolled but withdrawn due to defects. Mybico's attorney withdrew due to lack of funds. Despite the Court's extraordinary efforts to contact the applicant and accommodate it, Mybico failed to file heads of argument timeously and sent a postponement request by fax at 16:30 the day before the hearing, requesting a ten-week postponement.

• Whether a postponement should be granted in circumstances where an applicant failed to comply with procedural requirements and demonstrated dilatory conduct
• Whether the Competition Tribunal breached the audi alteram partem principle by not affording Mybico an opportunity to make oral representations
• Whether the Tribunal demonstrated bias in considering the merger application
• Whether the Tribunal failed to apply its mind to Mybico's objections
• Whether the Competition Tribunal has jurisdiction under the Competition Act to dictate to whom merging parties should sell their interests

The procedural defects in the application were condoned given that the applicant was not legally represented. The application for postponement and the main application were dismissed with costs.

The binding legal principles are: (1) A postponement will only be granted where the true reasons for unpreparedness have been fully explained, where the party's unreadiness is not due to delaying tactics, and where justice demands further time (applying Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 399); (2) A party cannot successfully argue breach of audi alteram partem (the right to be heard) when that party failed to attend the hearing at which it could have made representations and sought leave to address the tribunal; (3) The Competition Tribunal does not have jurisdiction under the Competition Act to require merging parties to sell their interests to persons or classes of persons of the Tribunal's choosing - the Tribunal's power is limited to prohibiting mergers on grounds specified in the Act; (4) Lack of legal representation and insufficient funds, without more, do not constitute adequate grounds for postponement where there is a pattern of dilatory conduct and no substantive merit in the application.

Davis JP made important observations about economic transformation and youth participation in the economy: "There can be no doubt that the future of this country's democracy depends upon the most widespread participation in the economy by all South Africans, particularly those millions who were precluded from adequate and fair participation in the economy due to 300 years of racist rule." The Judge emphasized that the judgment should not be construed as contradicting or not supporting this principle, but noted that "a Court must follow the rules which are laid down, the procedures which are contained in the Act and the jurisprudence which has been set out over a long period of time." Davis JP further observed that the lack of substance in the application does not mean that Mybico should not seek to negotiate with respondents to ensure implementation of its commendable vision. The Court noted it had offered the parties an opportunity to negotiate, and only upon their refusal to continue along these lines was the Court compelled to dismiss the application. These remarks demonstrate judicial sympathy for economic transformation objectives while maintaining that such objectives must be pursued through proper legal channels and procedures.

This case establishes important principles regarding postponement applications in competition law matters and the limits of the Competition Tribunal's jurisdiction. It clarifies that: (1) Courts will not grant postponements merely for the asking - they must be properly motivated with full explanation of the true reasons, absence of delaying tactics, and where justice demands; (2) A party cannot complain of breach of audi alteram partem when it failed to attend the hearing where it could have made representations; (3) The Competition Tribunal does not have power under the Competition Act to dictate to whom parties should sell their interests - it can only prohibit mergers on grounds listed in the Act; (4) Courts will accommodate unrepresented litigants raising important public interest issues (such as black economic empowerment) but will not tolerate dilatory conduct and unsubstantiated applications. The case demonstrates judicial balancing between access to justice concerns (particularly regarding economic transformation objectives) and the need to maintain procedural discipline and avoid prejudice to parties who have obtained regulatory approval.